United States v. Rodriguez-Moctezuma

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006 Charles R. Fulbruge III Clerk No. 05-40868 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOEL RODRIGUEZ-MOCTEZUMA, aka Carlos Lopez-Moctezuma, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-851-1 -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Joel Rodriguez-Moctezuma pleaded guilty to being found unlawfully in the United States after deportation and was sentenced to 72 months of imprisonment and three years of supervised release. As a condition of supervised release, Rodriguez-Moctezuma was ordered to cooperate in the collection of a DNA sample as directed by his probation officer.

Rodriguez-Moctezuma argues that the district court erred in ordering him to cooperate in the collection of a DNA sample as a No. 05-40868 -2- condition of supervised release. This claim is dismissed for lack of jurisdiction because it is not ripe for review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

Rodriguez-Moctezuma’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Rodriguez-Moctezuma contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Rodriguez-Moctezuma properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.